Court Will Mull Challenge Over Pot Cookies

On March 28, B.C. Supreme Court Justice Robert Johnston will set a date for his decision on a Victoria man’s constitutional challenge to Health Canada’s medical-marijuana access regulations.

Owen Smith, who was the head baker for the Cannabis Buyers’ Club of Canada, was charged on Dec. 3, 2009, with possession for the purpose of trafficking THC, one of the active ingredients in marijuana. He is also charged with unlawful possession of marijuana.

Smith was charged two years ago after the manager of an apartment building complained to police about a strong, offensive smell wafting. Police arrested Smith and obtained a search warrant.

They discovered the suite was being used as a bakery. Officers recovered substantial quantities of cannabis-infused olive and grapeseed oil, as well as pot cookies destined for sale through the club.

Smith’s trial began Jan. 16, but moved quickly into a voir dire – a trial within a trial – to allow Smith’s defence lawyer, Kirk Tousaw, to challenge the validity of the Controlled Drugs and Substances Act regarding marijuana.

Although Smith pleaded not guilty to the charges, admissions of fact were entered into the court record in which he basically admits the essential elements of the offences.

Tousaw asked Johnston to enter a stay of proceedings, arguing that Smith stepped in to fill a legislative void. Although the access regulations claim to provide patients with the option to ingest cannabis in products such as the cookies and oils made by Smith, people authorized to use marijuana for medical reasons are only allowed to possess it in dried form.

“This is arbitrary, irrational and works to harm health rather than improve it,” said Tousaw.

The use of oral and topical cannabis-based medicines by the 3,700 critically and chronically ill members of the Cannabis Buyers’ Club of Canada is reasonable, said Tousaw.

“The government’s response to previous rulings in this area is in bad faith and prosecuting Mr.

Smith for doing what is necessary and what the government has failed to do, is an abuse of process.”

Federal prosecutor Peter Eccles reminded the court that the possession, production and trafficking of marijuana is illegal in Canada. The courts and Parliament have recognized that some people have a legitimate need to use marijuana for medical purposes and they can obtain licences to possess, produce and provide marijuana for medical purposes.

But Smith was not licensed, said Eccles.

“What he was doing was entirely covered by the criminal prohibitions against the possession and trafficking of marijuana.”

The case raises the question of whether in our free and democratic society citizens are entitled to selectively abide by laws they find acceptable, while ignoring those that do not accord with their own world view, said Eccles. Smith is asking the court to substitute his view on the medical marijuana access regulations for Parliament’s, said the Eccles.

He advised Johnston not to usurp the role of the legislator or second-guess the wisdom of government actions.

The government, under the authority of the CDSA and the Food and Drugs Act, has jurisdiction over the control of drugs to protect the health and safety of all Canadians, said Eccles. Dried cannabis is not an approved drug.

“Mr. Smith invites this court to permit the manufacture and sale of illegal cannabis products based on anecdotal evidence, without any sound science in support,” said Eccles.

– Article from